Coil v. Jefferson County Bd. of Adjustment

• Decision Date: 26 October 2007
• Docket Number: No. S-06-486.,S-06-486.
• Citation: 274 Neb. 386,740 N.W.2d 362
• Parties: CITIZENS OPPOSING INDUSTRIAL LIVESTOCK and Village Board of Reynolds, Nebraska, Appellants v. JEFFERSON COUNTY BOARD OF ADJUSTMENT, Appellee.
• Court: Nebraska Supreme Court

740 N.W.2d 362

274 Neb. 386

CITIZENS OPPOSING INDUSTRIAL LIVESTOCK and Village Board of Reynolds, Nebraska, Appellants v. JEFFERSON COUNTY BOARD OF ADJUSTMENT, Appellee.

No. S-06-486.

Supreme Court of Nebraska.

October 26, 2007.

Steven M. Virgil, Omaha, Patricia Knapp, and, on brief, James M. Buchanan, for appellants.

Daniel L. Werner, P.C., L.L.O., Hebron, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

This is the second appearance of this case before this court. Citizens Opposing Industrial Livestock (COIL) and the village board of Reynolds (the village), appellants, filed an action with the district court for Jefferson County against appellee, the Jefferson County Board of Adjustment (the board). Appellants challenged the board's ruling that approved a special use permit allowing the operation of a finishing site for swine. In Citizens Opposing Indus. Livestock v. Jefferson Cry., 269 Neb. 725, 695 N.W.2d 435 (2005) (COIL I), we concluded that the lack of verification of the petition did not defeat jurisdiction, and we reversed the district court's order of dismissal and remanded the cause for further proceedings.

Following remand, a bench trial was conducted on appellants* amended petition. After the trial had concluded, the board filed a motion to dismiss, claiming that the district court did not have subject matter jurisdiction because appellants lacked standing to bring the action. Appellants objected to the motion. Following a nonevidentiary hearing, the district court entered an order sustaining the board's motion and dismissing the action. Appellants appeal. Because we conclude that the district court erred by failing to hold an evidentiary hearing on the board's motion challenging appellants' standing, we reverse the district court's order and remand the cause for further proceedings.

STATEMENT OF FACTS

As noted above, this is the second appearance of this case before this court. The following facts are recited in COIL I:

In February 2004, the Jefferson County Board of Commissioners approved a special use permit to allow the operation of a finishing site for swine. In March, the board of adjustment affirmed the board of commissioners' decision.

COIL and the village filed a petition in the district court challenging the ruling by the board. . . . The petition was signed by COIL and the village's attorney, but did not include a verification affidavit. The board of adjustment moved to dismiss, contending that the district court lacked jurisdiction because the petition was not verified as required by [Neb.Rev.Stat.] § 23-168.04.

The district court determined that the petition was not duly verified and that the failure to file a verified petition was jurisdictional. So the court dismissed the petition, and COIL and the village appeal[ed].

COIL I, 269 Neb. at 726, 695 N.W.2d at 436.

Neb.Rev.Stat. § 23-168.04 (Reissue 1997) provides, inter alia, that anyone aggrieved by a decision of a board of adjustment may file a "petition" with the district court, "duly verified," setting forth the purported illegality in the board's decision. In COIL I, we determined that the verification requirement contained in § 23-168.04 was not jurisdictional, and as a result, we reversed the district court's order dismissing appellants' petition, and we remanded the cause for further proceedings.

After remand, appellants filed an amended petition in which the only change from the original petition was the addition of a verification. Subsequent to appellants' filing their amended petition, the district court ruled that the board's original answer would "serve as answer to the amended petition." In its answer, the board generally denied appellants' allegations in their amended petition to the effect that they possessed an interest in the litigation. The board did not specifically assert that appellants lacked standing to bring the instant action.

On September 16, 2005, the district court held a bench trial on appellants' amended petition. The evidence at trial focused on the merits of the amended petition. No discussion or challenge to appellants' standing was raised at trial. On November 14, following trial and before resolution of the underlying case, the board filed a motion to dismiss, claiming that "neither [COIL] nor [the village] has standing to invoke the jurisdiction of this court." On December 9, an objection to the board's motion was filed on behalf of appellants.

Both the motion to dismiss and the objection to the motion were argued on January 19, 2006. The board argued that appellants had failed to prove at trial that they had standing to bring the lawsuit, and as a result, the district court lacked subject matter jurisdiction. None of the parties offered evidence at the hearing. Counsel for appellants argued that an evidentiary hearing was needed in order to address the board's assertion that appellants lacked standing. The district court did not set the motion for an evidentiary hearing.

In an order filed March 30, 2006, the district court concluded that it lacked subject matter jurisdiction because appellants had not adduced evidence at trial demonstrating that either COIL or the village was a proper party plaintiff in the litigation. The district court sustained the board's motion and dismissed appellants' amended petition for lack of standing. Appellants appeal.

ASSIGNMENT OF ERROR

On appeal, appellants assign two errors that can be summarized as claiming that the district court erred in dismissing appellants' amended petition for lack of jurisdiction.

STANDARD OF REVIEW

This action was filed on March 25, 2004, and thus, we apply the new rules for notice pleading. See Neb. Ct. R. of Pldg. in Civ. Actions 1 (rev. 2004). Aside from factual findings, which are reviewed for clear error, the granting of a motion to dismiss for lack of subject matter jurisdiction under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(1) (rev. 2003) is subject to de novo review. See Bohaboj v. Rausch, 272 Neb. 394, 721 N.W.2d 655 (2006).

ANALYSIS

The issue presented to this court on appeal is whether, given the stage of the litigation, the district court erred in granting the board's motion to dismiss for lack of standing without first holding an evidentiary hearing. As we have noted above, appellants* action was filed on March 25, 2004, and thus, we apply the new rules for notice pleading. Initially, we note that the board's motion was captioned "Motion to Dismiss." The board did not specifically identify its motion as one filed under rule 12(b)(1). Rule 12(b)(1) provides as follows:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(1) lack of jurisdiction over the subject matter.

The board's motion stated that appellants lacked standing. The defect of standing is a defect of subject matter jurisdiction. See, generally, Chambers v. Lautenbaugh, 263 Neb. 920, 927, 644 N.W.2d 540, 547 (2002) (stating that "[a]s an aspect of jurisdiction . . ., standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify the exercise of the court's remedial powers on the litigant's behalf"). Accordingly, we review the board's motion as one seeking dismissal of appellants' amended petition for lack of subject matter jurisdiction filed under rule 12(b)(1).

On appeal, appellants argue that the district court erred when it sustained the board's motion to dismiss based on lack of standing without conducting an evidentiary hearing. Appellants note that although a trial was held on their amended petition, the board did not raise a specific challenge to appellants' standing until after the trial had concluded. Given the procedural posture of the case and the stage of the litigation, appellants assert they were entitled to an evidentiary hearing on the standing issue raised in the board's posttrial motion to dismiss. Appellants assert they are entitled to a reversal of the order of dismissal. We agree with appellants that the district court erred in dismissing appellants' amended petition without affording the parties the opportunity to establish the factual background necessary to permit the district court to resolve the standing issue.

Because Nebraska's notice pleading rules are modeled after the Federal Rules of Civil Procedure, we look to federal court decisions for guidance. See Bohaboj v. Rausch, supra. We recently considered the nature of a motion to dismiss under rule 12(b)(1) in Washington v. Conley, 273 Neb. 908, 912-13, 734 N.W.2d 306, 311 (2007), stating as follows:

It is well established in federal courts that there are two ways a party may challenge the court's subject matter jurisdiction under rule 12(b)(1). The first way is a facial attack which challenges the allegations raised in the complaint as being insufficient to establish that the court has jurisdiction over the subject matter of the case. [See, White v. Lee, 227 F.3d 1214 (9th Cir.2000); Courtney v. Choplin, 195 F.Supp.2d 649 (D.N.J.2002); Zelaya v. J.M. Macias, Inc., 999 F.Supp. 778 (E.D.N.C.1998).] In a facial attack, a court will look only to the complaint in order to determine whether the plaintiff has sufficiently alleged a basis of subject matter jurisdiction. [See VanHorn v. Nebraska State Racing Comm., 273 Neb. 737, 732 N.W.2d 651 (2007). See, also, Beatty v. U.S. Food and Drug Admin., 12 F.Supp.2d 1339 (S.D.Ga.1997); Cohen v. Temple Physicians, Inc., 11 F Supp.2d 733 (E.D.Pa.1998).] The second type of challenge is a factual challenge where the moving party alleges that there is in fact no subject matter...